Overseas matai sa'o limits not restrospective: A.G.

The Government has confirmed changes to rules preventing the awarding of matai sa’o titles to non-residents of Samoa will not be applied retrospectively, meaning only future title bestowals will be affected.

In a statement released on Tuesday evening, Attorney General Savalenoa Mareva Betham-Annandale defended the new requirements, inserted into the Land and Titles Court Act 2020 during its final reading in Parliament last month.

She says the changes are intended to “safeguard the integrity of the matai system.”

On Monday, former Deputy Prime Minister Fiame Naomi Mata’afa said she was worried the law might apply to current matai title holders, but Savalenoa says it is not.

Only future bestowals of matai sa’o will have to be on matai who reside in and will remain in Samoa to fulfil their duties.

While a drafted rule to restrict families to having just five paramount chiefs per family drew concern across the country, the Attorney General says the new rules are based “following the public consultations.”

Today there is no limit on how many matai sa’o a family can have, but a person must reside in Samoa and be “present in the family and village” in order to be eligible for a title.  

There is however a clause that the number and selection of matai sa’o “should not diminish the essence and importance of the matai sa’o.”

It is not explained what essence or importance should mean or how to interpret this, or whether a certain number or selection might diminish the importance of matai sa’o.

Samoa First Political Party Leader Unasa Iuni Sapolu said the new rule was not acceptable.

“It’s basically another controlling mechanism by the Government of our measina (family treasures), which is really not their business, frankly,” she told the Samoa Observer on Wednesday.

“It belongs to the family. There are reasons why a family would nominate a Sa’o whether they reside in New Zealand, Australia, or Samoa. They have their reasons.”

The Land and Titles Act 2020 is one of three new pieces of legislation that was first brought to Parliament in March last year. 

Along with the Judicature Amendment Bill and Constitution Amendment Bill, the Land and Titles Bill has been the subject of controversy, with experts arguing the bills are ill-conceived, pose a danger to Samoa’s democracy, and are an overreach of Government power.

In the wake of the criticism, the Special Parliamentary Committee dealing with the bills executed a nationwide consultation on the new bills, going from district to district to explain the Government’s motivations behind the reforms and in some cases making promises to amend problematic clauses.

One of those promises was to remove a proposed provision to restrict families’ to just five matai sa’o at a time.

The new clause, now officially signed into law and assented by the Head of State, was not publically revealed before the Parliament session on Tuesday 15 December 2020 although it has been explained by the Attorney General’s office in the days since it was passed.

Unasa said there was not enough consultation or the right kind of consultation to justify making such a change.

“Who defines the integrity of the matai system? Is it the people, the extended family who nominate their matai, or is it the Government who impose a certain standard?," she said. 

“We have got to look at it objectively and look at the people involved. Have their views been ascertained? These three bills were fly-by-night type legislation and extended families have never been consulted.”

There are very few elements of the FaaSamoa that have been codified into law. And with most villages having their own customary practices (agaifanua), actually codifying Samoan custom would be a long and delicate process.

Unasa said while there may be room for the Government to build legislation around matai bestowal criteria, the people of Samoa should be consulted on those criteria.

“Samoa as a civilisation, our history goes back 3000 years. I am sure over that history that wisdom has accumulated over that period of time. For Government to say that system has no integrity is insulting,” she said.

“The Government has to ask the people do we need criteria and why? Everything should come from the people whose rights are being affected. 

“You don’t define [crtieria] for people, people define it for themselves, they are the ones who own these titles.”

The Samoa Observer understands several lawyers have been engaged to file legal challenges in the Supreme Court against the three laws, on the basis that they breach people’s fundamental rights that are protected in the Constitution.

Unasa said there should be facts presented to back up the reason for the legal change.

“What are the facts? How many Samoans residing overseas have returned to be bestowed a sa’o title and leave Samoa?," she asked. 

"I think we need to have some facts and not just assumptions to stop limiting the choices people have over their sa’o titles.”

Consultation work done in 2016 on the Land and Titles Court found village members wanted their matai sa’o to reside in their villages. 

In the report by the Special Inquiry Committee on Lands and Titles Court, a recommendation specifically refers to both restricting matai sa’o to residing in their village, and also suggested the limit of five sa’o per family too.

“It is quintessential for an elected sa’o to reside within the village and family the title belongs to,” the report states.

“The heirs to the title have the collective authority to remove the title from the titleholder if service is not rendered to the family and village. A sa’o title is highly dignified if held by a maximum of five (5) matai at one time.”

Witnesses to the Committee said it had been decades since their sa’o had returned to their villages from abroad, and, for some families, they stopped petitioning their case against their sa’o because they would not return to the village to hear the petition, according to the report.

“The question therefore is, where else can such grievances be heard if there is a lack of responsibility on the part of the sa’o elected by the family as caretaker of the family heritage in accordance with Samoan customs?,” the committee asked.

The new Land and Titles Act 2020, Section 13 and Section 14 details the new rules concerning matai s'ao as follows:

To maintain the integrity of the institution of the Samoan matai sa’o, the following apply:

(a) the selection and number of matai sa’o should not diminish the essence and importance of the matai sa’o; and

(b) the bestowment ceremony of a matai sa’o shall comply with section 15; and

(c) the Matai Sa’o given the responsibility of serving the extended family should be domiciled in Samoa and be present in the family and village to carry out duties expected of a matai sa’o.

14. Removal of Matai Title:

(1) The Court on petition of a sa’o or a suli may hear and determine whether to remove a matai title if any of the following occurs:

(a) where the holder of that Title has acted in a manner that brings disrepute to the family, village or community of the matai; or

(b) where the holder of that Title has failed to properly perform the duties of a matai; or (c) where the holder of that Title has been convicted of a crime and served an imprisonment sentence.

(2) The Court may order to stay the removal of a matai title that is the subject of a petition under this section, until a final determination of the Court.

(3) For the purpose of this section a petition to:

(a) remove a matai title from a suli may only be made by the sa’o with pule over that matai title on the consensus of the suli; and

(b) remove a matai title of a sa’o may be made by consensus suli

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